Van Scooter v. 450 Trabold Road, Inc.

• Decision Date: 15 July 1994
• Docket Number: No. 1,1
• Citation: 616 N.Y.S.2d 129,206 A.D.2d 865
• Parties: Mary Ann VAN SCOOTER, as Administratrix of the Estate of John E. Van Scooter, Deceased, and Mary Ann Van Scooter, Individually, Appellant, v. 450 TRABOLD ROAD, INC., d/b/a Weckesser Brick Co., Weckesser Brick Co., Inc., and Mark S. Nicholson, Respondents. Appeal
• Court: New York Supreme Court — Appellate Division

Page 129

616 N.Y.S.2d 129

206 A.D.2d 865

Mary Ann VAN SCOOTER, as Administratrix of the Estate of John E. Van Scooter, Deceased, and Mary Ann Van Scooter, Individually, Appellant, v. 450 TRABOLD ROAD, INC., d/b/a Weckesser Brick Co., Weckesser Brick Co., Inc., and Mark S. Nicholson Respondents. Appeal No. 1.

Supreme Court, Appellate Division Fourth Department.

July 15, 1994.

Carl L. Feinstock, Rochester, for appellants.

Harter, Secrest & Emery, Rochester, for respondents (Susan Roberts, of counsel).

Before GREEN, J.P., and BALIO, FALLON, CALLAHAN and DAVIS, JJ.

MEMORANDUM:

An amended judgment was entered after entry of the judgment from which this appeal was taken. No appeal lies from a judgment that has been superseded by an amended judgment (see, Matter of Eric D. [appeal No. 1], 162 A.D.2d 1051, 559 N.Y.S.2d 57; McLaurin v. Ryder Truck Rental, 123 A.D.2d 671, 507 N.Y.S.2d 41). We exercise our discretion to treat the appeal as one taken from the amended judgment (see, CPLR 5520[c]; Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988, 529 N.Y.S.2d 658; McLaurin v. Ryder Truck Rental, supra; Sanders v. New York City Tr. Auth., 135 Misc.2d 688, 517 N.Y.S.2d 854).

Plaintiff's decedent was fatally injured when the automobile he was driving struck the rear of a truck owned by defendant 450 Trabold Road, Inc., d/b/a Weckesser Brick Co. (Weckesser). At the time of the accident, the truck was parked on the southbound lane of East River Road while defendant Mark S. Nicholson, a Weckesser employee, delivered a load of bricks to a construction site. The jury apportioned liability 90% to plaintiff's decedent and 10% to defendant Nicholson. On appeal, plaintiff contends that certain errors by the trial court substantially impaired her rights and require a new trial (Runfola v. Bryant, 127 A.D.2d 972, 513 N.Y.S.2d 55). We agree.

The court erred in permitting a Sheriff's Deputy to testify that, on his police accident report, he indicated that the accident was caused by decedent's "inattention." A witness must testify to facts and not to opinions and conclusions drawn from the facts (Richardson, Evidence § 361 [Prince 10th ed]. The deputy's opinion testimony concerning the cause of the accident invaded the jury's exclusive province to determine factual issues (see, Stevens v. Kirby, 86 A.D.2d 391, 396, 450 N.Y.S.2d 607; Zimmerman v. Ullmann, 173 App.Div. 650, 653, 160 N.Y.S. 81; see also, People v. Vizzini, 183 A.D.2d 302, 591 N.Y.S.2d 281).

The court also erred in precluding plaintiff's accident reconstruction expert from testifying that the lack of a bumper on Weckesser's truck contributed to decedent's injuries. Plaintiff established that the witness possessed "the requisite skill, training, education, knowledge or experience" (Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532) and that his opinion "would help to clarify an issue calling for professional or...